Delhi High Court
Kavita Devi vs Roshni Devi & Anr. on 4 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.07.2022
+ FAO 68/2021 & CM APPL. 5981/2021
KAVITA DEVI ..... Appellant
versus
ROSHINI DEVI .....Respondent
Advocates who appeared in this case:
For the Appellant: Mr. M. D. Jangra and Mr. Gagan Mathur, Advocates.
For the Respondent: Mr. Vijay Dalal, Advocate.
AND
+ CONT.CAS(C) 222/2021
KAVITA DEVI ..... Petitioner
versus
ROSHINI DEVI & ANR. .....Respondent
Advocates who appeared in this case:
For the Petitioner: Mr. M. D. Jangra and Mr. Gagan Mathur, Advocates.
For the Respondent: Mr. Vijay Dalal, Advocate.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. Appellant impugns order dated 22.01.2021 whereby the
application filed by the respondent under Order 39 Rule 1 & 2 Code
of Civil Procedure has been allowed and it has been directed that
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
defendant/appellant shall not obstruct the respondent from entering
the suit property i.e. 159 Pochanpur Village, Sector 23 Dwarka, New
Delhi.
2. Appellant is the daughter-in-law and respondent is the mother-
in-law.
3. Respondent had filed the subject suit inter-alia for possession,
permanent and mandatory injunction seeking vacant peaceful physical
possession of two rooms, one at the ground floor and one at the first
floor of the suit property. Further restraint was sought on the
appellant/defendant from creating any third party interest in the suit
property i.e. the two rooms.
4. It is contended in the plaint that the husband of the
respondent/plaintiff had purchased a plot of land on 28.11.1988 and
thereafter built the house on the subject plot of land. Husband of the
plaintiff expired on 13.10.1993 leaving behind plaintiff/respondent,
her daughters and one son. The daughters and the son of the
respondent relinquished their rights in the subject property in favour
of the respondent by a registered Relinquishment Deed dated
12.04.2017. Consequently, the respondent became the absolute owner
of the suit property.
5. As per the plaint, the son of the respondent married the
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Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
appellant on 08.02.2011 and thereafter resided with the respondent as
a family member. It is contended that there were certain matrimonial
issues between the appellant and the son of the respondent and
thereafter they started living separately.
6. It is contended in the plaint that appellant started living at her
parents' house after the disputes arose. It is further contended that in
August, 2015, appellant illegally occupied two rooms on the first floor
of the suit property by forcibly entering the same. It is contended that
the respondent did not object to the same hoping that good sense
would prevail and the disputes would get resolved.
7. It is further contended that false and frivolous allegations were
levelled against the respondent/plaintiff based on which FIR has been
got registered on false and baseless facts.
8. It is contended that the appellant/defendant had attempted to
prevent the ingress of the respondent by putting her locks on the main
gate of the ground floor pursuant to which a complaint was filed with
the Police Station, Sector 23, Dwarka. Subsequently, on 15.02.2018,
respondent got to know that the locks of the respondent on the rooms
at the ground floor which were in possession of the respondent had
been broken and certain articles removed.
9. It is contended in the plaint that the respondent/plaintiff
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Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
regularly visits the suit property and is maintaining the ground floor
and the entire property is in possession of the respondent/plaintiff
except two rooms i.e. one on the first floor and one on the ground
floor which are in possession of the appellant.
10. In the written statement, appellant has denied that she forcibly
entered the suit property in August, 2015 and illegally occupied two
rooms on the first floor of the suit property. It is contended in the
written statement that appellant lives in one single room that is located
on the ground floor.
11. In paragraph 11 of the written statement, appellant has denied
that she has deprived the respondent/plaintiff from entering into the
suit property or that she has put her locks on the main gate. On the
other hand it is contended that it was the respondent who had deprived
the appellant access to the matrimonial home by putting her locks on
the suit property.
12. In paragraph 12 of the written statement, appellant/defendant
has denied that she did not allow the plaintiff/respondent from
entering the suit property.
13. In the impugned order dated 22.01.2021, Trial Court has
noticed that appellant had filed a matrimonial dispute before the
Mahila Court, wherein by order dated 22.05.2018, it had been directed
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
that the appellant/defendant would not be dispossessed from the suit
property without due process of law.
14. Trial Court has further noticed that appellant had not claimed in
the written statement that the respondent had been dispossessed from
the subject property or that appellant was in exclusive possession of
the property after ouster of the respondent from the same.
15. Trial Court has noticed that the admitted position is that parties
are in joint possession of the property and consequently, appellant
could not prevent the respondent from enjoying the property and
likewise respondent cannot deprive the appellant of the enjoyment of
the property. Consequently, Trial Court has held that there is no legal
impediment which could prevent the plaintiff/respondent from
entering/enjoying the property in question which is meant for joint
living of the family.
16. As noticed hereinabove, the categorical stand of the respondent
is that the respondent is the owner of the subject property by virtue of
a registered Relinquishment Deed executed in her favour by her
daughters and her son who is the husband of the appellant.
17. The contention in the plaint is that only two rooms are in
possession of the appellant/defendant, one on the ground floor and the
other on the first floor of the subject property. In the written statement
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MAGGU
Signing Date:08.07.2022 21:02:41
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to HMJ Sanjeev Sachdeva.
there is no denial to the said allegation.
18. Further, it is specifically averred in the written statement that
appellant/defendant has never prevented the respondent from entering
into the subject property.
19. The averments in the written statement categorically show that
there is no ouster claimed by the appellant of the respondent from the
subject property. Since respondent is admittedly the owner of the
entire property and there is no ouster claimed by the appellant, there
can be no impediment in the respondent entering into the subject
property and using the same.
20. It may however be also noted that the respondent has been
directed by the Mahila Court by its order dated 22.05.2018, that she
cannot prevent the appellant from using the two rooms admittedly in
appellant's possession and that she cannot be dispossessed without
due process of law.
21. Consequently, there is no infirmity in the impugned order dated
22.01.2021 to the extent that it holds that there is no legal impediment
which can prevent the respondent from entering and enjoying the
property which is in her possession.
22. The apprehension expressed by the appellant, that respondent
wants to let out the remaining portion of the property to anti national
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Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
elements to prevent the appellant from using the same, can be
appropriately addressed by directing that the respondent shall be
entitled to use the subject property by her personally but she shall not
sell, alienate or create third party rights in the subject property or let
out or transfer the possession of the portion of the property in her
possession to any third party so long as the Appellant continues to
enjoy the protection of an order of a court of law with regard to the
portion in her possession.
23. Consequently, there is no merit in the appeal. The appeal is
however disposed of with a direction that the appellant shall not cause
any impediment or obstruct the respondent from entering the subject
property except the two rooms admittedly in possession of the
appellant. Further the respondent shall be entitled to personally use
the remaining portion of the property and she shall not be entitled to
sell, alienate or create third party rights in the subject property or let
out or transfer the possession of the portion of the property in her
possession to any third party so long as the Appellant continues to
enjoy the protection of an order of a court of law with regard to the
portion in her possession.
24. It is clarified that this order is only based on prima facie finding
and shall not come in the way of the Trial Court at the time of final
adjudication of the Suit based on the evidence led by the parties.
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
CONT.CAS(C) 222/2021
1. By this petition, petitioner seeks initiation of proceedings
against the respondent for alleged wilful and deliberate disobedience
of order dated 17.02.2021, whereby this Court had directed stay of the
operation of order dated 22.01.2021.
2. It is contended that the order dated 17.02.2021 staying the
operation of order dated 22.01.2021 was communicated to the
respondent No. 1 through her counsel. It is contended that the son of
respondent No.1 had even responded to the email sent by the counsel
communicating the order and it is alleged that on 19.02.2021,
respondent No. 1 visited the subject property and threatened the
petitioner and forcibly attempted to enter the suit property.
3. In reply to the petition, it is contended that respondent No. 2
was not a party to the suit and as such is not liable to be punished for
contempt for alleged breach of any order.
4. With regard to respondent No.1, it is contended that there is no
wilful default or breach on her part for the reason that she was never
communicated the subject order.
5. It is submitted that the order was never communicated to
respondent No.1 as the counsel does not have the contact details of
respondent No.1 and the contention is that order was communicated to
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Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the son of respondent No.1 and the son of respondent No.1 never
communicated the order to the respondent No.1. On the other hand he
had even sent an email for amicable resolution of all disputes.
6. As it is already been held in the appeal above that the stand of
the petitioner is not that there is any ouster of respondent No.1 from
the subject property and as per the written statement it is clear that she
claimed possession of only two rooms in the subject property, there is
no impediment on the respondent in entering upon or using the
remaining portion of the property.
7. Furthermore it has not been established that either respondent
No. 1 was served with the order or communicated the subject order.
8. In view of the above, I am of the view that no ground is made
out for initiating any proceedings under the Contempt of Courts Act
against the respondents or that there is any wilful breach of the subject
order.
9. Consequently, I find no merit in the petition or any ground to
proceed against the respondents under the Contempt of Courts Act.
10. The petition is accordingly dismissed.
JULY 04, 2022/rk SANJEEV SACHDEVA, J
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
